The Workplace Report with Ancel Glink

As employment attorneys, we often struggle with language to be used in termination letters and separation agreements when an employee who is being terminated is over forty (40) years old.  The reason for this is that the Age Discrimination in Employment Act (“ADEA”) prohibits discrimination in hiring and continued employment based upon age.  Often times, we counsel our clients to avoid the very mention of age or anything that could be construed as age based.  A recent Seventh Circuit Court of Appeals decision suggests that we need not be as concerned about the mention of age or factors related to age (such as Medicare eligibility) where age is a component, but not the deciding factor in an employment decision. In Carson et al. and Paulsin v. Lake County, Indiana , the court addressed an interesting factual situation related to providing supplemental insurance benefits to employees who had taken early retirement incentive (“ERI”) options, gone on Medicare for primary ...

The following is a re-post of an article by  Julie Tappendorf  from  The Municipal Minute , an Ancel Glink local government blog that she edits... In another installment of "be careful what you tweet," an aide for the Illinois governor was fired on his first day on the job, reportedly for inappropriate tweets.  News reports identify some of the former aide's tweets as being racist and homophobic, including the following: "To the Indian people in the library: SHUT THE F--- UP!" "I bet you liked that #fag" "Maybe body slamming reporters is the winning formula for republicans in IL?" It's important to point out that many of these tweets were posted years ago, so employees should take notice that what's in the past doesn't always stay in the past.  The Internet doesn't forget.

Employers know that the NLRB has been closely scrutinizing workplace policies for several years now, looking to see whether they infringe on an employee’s right to engage in concerted, protected activities. Notably, in the last couple of years, the NLRB has found policies that prohibit employees from taking photos in the workplace , walking off the job during scheduled work hours, and even swearing to be protected concerted activities in particular circumstances. The crux of many of these decisions is that employers cannot stifle employees’ ability to criticize or complain with each other and to others about their wages, hours or working conditions. Recently, the 5th Circuit Court of Appeals took a step towards balancing employers’ right to maintain a harmonious work environment against these broad employee protections.  The court of appeals overturned an NLRB decision, which had been affirmed by the lower court, that T-Mobile policies which called for employees to maintain ...

Last February we reported on Woods v. START Treatment and Recovery Centers, Inc. , a case before the Second Circuit in which the primary issue was whether to allow FMLA retaliation claims when the alleged retaliation was motivated only in part because of the employee’s FMLA leave.  The Second Circuit issued its decision on July 19, 2017 and held that it would give Chevron deference to a Department of Labor regulation which applied a motivating factor causation standard for FMLA retaliation claims, as opposed to the “but for” standard used by the district court. According to Woods, who worked as a substance abuse counselor for START since 2007, she requested medical leave for her severe anemia in February 2011. Woods claimed that she subsequently withdrew her request for leave after her supervisor told her to do so.  Woods was hospitalized for her anemia in August 2011.  In 2012, Woods was put on 90 day probationary period after she struggled with compliance and doc...

The Illinois budget impasse is resolved. After nearly two years without a budget, on July 6, 2017 the General Assembly passed its first budget since Governor Rauner was inaugurated. Of course, the price for the resolution of this impasse was the largest permanent income tax increase in Illinois history, with the individual tax rate increasing from 3.75% to 4.95%, and the corporate tax rate increasing from 5.25% to 7% * . Although this income tax increase passed on July 6, it applies retroactively to July 1. This means that employers need to withhold not only 4.95% of their employees’ incomes from all paychecks issued after July 6, but also need to apply this increased withholding for any paychecks issued on between July 1 and July 5. The Illinois Department of Revenue has issued guidance on this, which you can access by clicking here . This guidance contains the tax rate tables that employers can use to calculate the amount that needs to be withheld from their employees’ paychecks...

Both the Illinois Labor Relations Board (“ILRB”) and the National Labor Relations Board (“NLRB”) have found that employers are prohibited from unilaterally recording audio and video of unionized employees without first bargaining over the use of recording technology because it impacts wages, hours, and working conditions and thus constitutes a mandatory subject of bargaining. When it comes to an employee seeking to record conversations in the workplace, however, there is a very different position taken. Employers often prohibit employees from recording their conversations in the workplace. Many practical reasons exist for enforcing this kind of workplace prohibition on recording conversations in the workplace. Not only might the person being recorded be unaware of the recording, more importantly, the Illinois Eavesdropping Act prohibits recording private conversations unless all parties consent to it. The NLRB scrutinizes employer policies that restrict employees from recording w...

As state laws regarding both medicinal and recreational marijuana use become more lax, it comes as no surprise that workplace-related issues arise.  Testing for marijuana is especially challenging since a person can test positive for days, sometimes weeks, after use, depending on how frequently the person uses.  Therefore, even if a workplace policy prohibits a person from being “high” on the job, a drug test alone would not be conclusive proof. Earlier this week, the Supreme Judicial Court of Massachusetts held that an employer unlawfully terminated one of its employees for testing positive for marijuana.  The employer in that case, Advantage Sales and Marketing, LLC (ASM), offered Cristina Barbuto an entry-level position, pending a drug test.  Barbuto informed an ASM representative that she would test positive for marijuana because her physician prescribed her the drug to treat the side-effects of her Crohn’s disease, making her a qualified medical marijuana...

In a trend that is increasingly taking hold in the U.S., the San Francisco city council last week passed an ordinance prohibiting employers who do business in the city from inquiring about salary history from job applicants. San Francisco joins other major cities such as New York City and Philadelphia in this trend. The ordinance awaits signature by the mayor. As we have reported before , laws which prohibit employers from asking about salary history are designed to eliminate perpetuation of the wage gap between genders. Even today, women still earn less than men in virtually all segments of the workforce. Many believe that this gap is perpetuated, in part, because employers base starting salaries on a candidate’s salary history, lowering the starting pay offer for applicants who were earning less at their last jobs than other candidates or employees. Since men still generally earn more than women, basing starting pay on a candidate’s salary history will maintain this wage dispari...

Do you suspect that one of your employees might be stealing from you? Have you considered giving that employee a lie detector test? Before you do so, you may want to educate yourself on the laws governing the use of lie detector tests in the workplace. The Employee Polygraph Protection Act is a federal law that applies to all private sector employees in the United States. The law prohibits employers from requiring employees or job applicants to take lie detector tests. It also prohibits employers from requiring employees or job applicants to disclose the results of any lie detector test they have taken in the past. The law does, however, provide an important exception. It allows employers to require an employee to take a lie detector test if the employee has caused the employer to suffer some kind of loss. So, if an employer discovers that an employee has stolen money, the employer can require this employee to take a lie detector test to determine whether he has stolen on oth...

The United States District Court for the Northern District of Illinois allowed a former employee of Northwestern University to continue her claims of sexual orientation bias, FMLA and ADA retaliation, and intentional infliction of emotional distress (or IIED ) against the institution. Diane Trahanas began working for Northwestern University as a research technician in June 2012. She was hired as a technical expert or specialist, and often worked alone in her research lab. While many of her colleagues worked eight-hour days, Trahanas conducted twenty-four hour experiments, including experiments such as collecting blood and tissue samples, and analyzing their results. In 2007, five years before Trahanas was hired by Northwestern, she began suffering from anxiety, depression, and ADHD. After struggling with her twenty-four hour work schedule at the university, she told her supervisor of her disability and requested accommodation in her work hours. Trahanas’ request was denied. S...

The 7th Circuit Court of Appeals on Wednesday, confirmed the Wisconsin district court decision that upheld the state’s “right to work” legislation.  As readers likely know, right to work laws prohibit unions from requiring employees in union represented jobs who choose not to join the union to pay “fair share” dues or fees. Traditionally, unions have been allowed to assess these fair share dues against non-union members as a charge for the indirect benefits they receive from the union’s work, such as wage increases and terms of employment. An almost identical case was decided almost three years ago by the 7th Circuit when it upheld Indiana’s right to work law. In fact, both cases were brought by the same union, the International Union of Operating Engineers. In its decision last Wednesday, the court found that there was no substantial difference between the Indiana and Wisconsin cases or legislation so it was bound to follow its own rule of law. Wednesday's decision come...

The following is a re-post of an article by Julie Tappendorf from The Municipal Minute , an Ancel Glink local government blog that she edits... We've reported frequently on employees "behaving badly" on social media and being disciplined and even terminated for postings, even when those posts are made on their private social media sites and on their own time.  As a general rule, an employer can discipline employees for personal social media activities, so long as those activities do not constitute protected activity (i.e., First Amendment protected speech, matters of public concern, protected concerted activities, etc).  Individual gripes about your job or your boss are typically not protected and can subject an employee to discipline. An employee at a retirement facility was recently terminated for her social media posts that included the following: “Today was the worst!!!!!!!!!” And, in a post that appeared to be directed at her co-workers: “Thanks...

Earlier this week, an Illinois district court granted in part and denied in part an employer’s motion to dismiss a former employee’s complaint for its failure to state a claim.  The complaint was brought by an employee who previously worked as a teacher’s assistant for Defendant Melrose Park Broadview School District No. 89. The case arose after the employee, Cleon Jones, was granted FMLA leave from February 23, 2016 to May 15, 2016 to care for his mother who had been diagnosed with cancer.  On May 11, 2016, the Employer’s Assistant Superintendent of Human Resources sent Jones a letter stating that his request for an extension was denied and his FMLA leave would expire on May 16, 2016.  Jones alleged that the employer miscalculated his FMLA time since the Employer had a policy which stated, “eligible employee may take FMLA leave for up to a combined total of 12 weeks each 12-month period” and that any full workweek period during which the employee would not have been...

Donald Trump gained much of his political support by vowing to crack down on illegal immigration. Many people may not be aware, however, that laws that have been on the books for years already impose significant penalties on employers for hiring illegal immigrants. These penalties can include thousands of dollars of fines and even jail time. Therefore, it is important that employers ensure that they are not hiring employees who cannot work legally in the United States, and comply with all federal laws required to verify an employee’s legal status. The Immigration Reform and Control Act makes it illegal to knowingly hire an illegal immigrant or to hire anyone without complying with the Act’s employment verification requirements. It requires employers to review certain documents to verify an employee’s legal status prior to the hiring. The employer and employee must complete a Form I-9 . This requires an employee to produce documents that will attest to the employee’s identity and w...

Remember all of the time and resources employers devoted to preparing for the change in overtime regulations in 2016? Remember how employers painstaking examined those jobs that were “on the bubble” of being exempt or non-exempt to determine whether it was a better business decision to increase those salaries to the new minimum or budget for overtime? And remember in late November last year-a couple of days before Thanksgiving-a judge in Texas issued a nationwide injunction against implementation of the rule ? After that, the issue just virtually fell off of most employers’ radar. It wasn’t anymore about implementing the new overtime rules; employers wondered, rather, if they should keep in place the changes that they had already made in anticipation of the new rule. On the eve of the inauguration of Donald Trump, few speculated on what the new administration would ultimately do about the pending challenges to the regulations that more than doubled the threshold for exempt status empl...

Since the enactment of the Affordable Care Act (which takes on new life everyday), many employers have asked us the question: “Can’t we just give our employees money and they can go buy their own insurance so we can get out of the business of buying insurance for them?” For small employers, the answer now is “Yes you can.” Effective January 1, 2017, Congress enacted legislation enabling small employers (employers with 49 or fewer full-time-equivalent employees) to offer employees, in lieu of insurance coverage, a health reimbursement arrangement that is not integrated with a group health plan. Before January 1, that would have been illegal. Some smaller employers may be interested in establishing QSEHRA’s (Qualified Small Employer Health Reimbursement Arrangements) in lieu of providing insurance through a group health plan. Here are some of the provisions and requirements: The employer must not be an applicable large employer (50 or more FTE employees) under the ACA. Th...

According to the 8th Circuit Court of Appeals , MikLin, a family enterprise that owns and operates ten Jimmy John’s sandwich shops in the Minneapolis-St-Paul area, did not violate the NLRA when they fired six employees after several union sponsored attacks. MikLin employees started an organizing campaign in 2007 seeking to be represented by the Industrial Workers of the World Union. In 2010, the IWW lost a Board-conducted election, but remained active with the employees. Paid sick leave was among the benefits most sought by the IWW for employees. Union supporters strategically planned their attack against MikLin on this issue in January and February 2011, intentionally right around flu season. They took this issue public by posting flyers on community bulletin boards in MikLin stores picturing identical Jimmy John’s sandwiches, side-by-side. It labeled one as being made by a healthy Jimmy John’s worker, and the other by a sick Jimmy John’s worker. Below it asks the question, “...

The following is a re-post of an article by Dan Bolin from The Municipal Minute , an Ancel Glink local government blog by Julie Tappendorf ... ________________________________________ Excerpt from the ELGL (Engaging Local Government Leaders) Blog: Supreme Court Decision Affects Local Governments on Social Media Last week's Supreme Court decision in Packingham v. North Carolina recognizes the application of the First Amendment to social media. Today, Dan Bolin and Julie Tappendorf take a closer look at what that means for local governments in a blog post for ELGL (Engaging Local Government Leaders): The Government Can’t Just Delete Comments it Doesn’t Like If you see a post you don’t like on your personal Facebook 'wall,' you can just delete or hide it, or just block someone from posting at all. Moderating comments on local government social media sites is very different, however, because of the First Amendment. The First Amendment provides individuals ...